Res Sub-Judice under CPC:

Nature, Scope and

Objective
This Article is written by  Shruti Singh, 2nd year Law student from
Hidayatullah National Law University, Raipur. This article explains the
Principle of Res Sub-Judice and various case laws associated with it.

Table of Contents
 Meaning
 Nature, Scope and Objective
 Meaning of suit
 Conditions
 Test
 Suit pending in foreign court
 Inherent power to stay
 Consolidation of suits
 Effect of contravention
 Interim orders
 Difference between Res Judicata and Res Sub Judice
 Conclusion
 References

Meaning
Res means every object of right that forms the subject matter in a
particular case. In Latin, the term Sub-judice means ‘under a judge’ or in
other words, a matter ‘under consideration’. It means a cause that is
under trial or pending before a court or judge. The doctrine of res-
judicata prevents the trial of a suit which is already pending in a court of
competent jurisdiction. When the same parties file two or three cases in
the same matter, the competent court has the power to stay proceedings
of another court. The primary aim is to prohibit the courts of concurrent
jurisdiction from simultaneously entertaining two parallel litigations.

Nature, Scope and Objective

The principle of res sub-judice prevents the court from proceeding with
the trial of any suit in which the matter in issue is directly or substantially
the same with the previously instituted suit between the same parties
and the court where the issue is previously instituted is pending has the
power to grant the relief sought.
This rule is applicable to the trial of the suit and not the institution. It
does not restrict the court from passing interim orders like injunction or
stay. However, it applies to revisions and appeals.

The purpose behind this rule is to prevent multiplicity of cases in courts.

It is also sought to prevent the plaintiff from getting two separate
decisions from different courts in his favour or two contradictory
judgements. It also ensures to protect the litigant from unnecessary
harassment. The policy of law is to restrict the plaintiff to one legislation,
thus obviating the possibility of two conflicting verdicts by one and the
same court in respect of the same relief.

Meaning of suit
The word suit has not been defined anywhere in the Code, but it is a
proceeding which is commenced by presentation of a plaint. In Hansraj
Gupta and Ors. vs. Official Liquidators of the Dehra Dun-Mussoorie
Electric Tramway Co.Ltd., the Privy Council has defined the expression
“suit” as a civil proceeding instituted by presentation of a suit.

In Pandurang Ramchandra vs. Shantibai Ramchandra, the Supreme Court

has stated suit is to be understood to apply on any proceeding in a court
of justice by which an individual pursues that remedy which the law
affords.

Conditions
Section 10 of the Civil Procedural Code, 1908 deals with the conditions
required to apply the principle of res sub judice. The conditions in the
process of application of res sub-judice are:

 Where the matter in issue is same

Section 10 clearly states that the matter in issue in both the suits must
be directly or substantially be the same.In other words there must be two
suits one that is previously instituted and another that is subsequently
substituted. The issues of both the suits should be same to get the
benefit of this principle, it is not sufficient if only one or two issues are
common. In the circumstances were the entire issues are not the same,
the court may exercise its power under Section 151 and stay the trial in a
subsequent suit or the trial of the suit may be consolidated. The power of
courts to stay the trial under Section 151 is discretionary in nature and
can be exercised only when there is an abuse of process of court and if it
defeats the ends of justice.

According to Indian Evidence Act, 1872 “matter in issue” are of two

kinds:

Matter directly and substantially in issue– Here “directly” means

immediately i.e. without any intervention. The word “substantially”
implies essentially or materially.

Matter collaterally and incidentally in issue– It is just contrary to the

matter directly or substantially in issue.

 Where the parties in suits are same

The two suits should have the same parties or their representatives.

 Where the title of the suit is same

The title of both the suits for which the parties are litigating should also
be same.

 Where the suit must be pending

The former suit must be pending in the court while the latter suit is
instituted. The word pending is for the previously instituted suit, where
the final decision has not been arrived at.

 In a competent court

Section 10 also specifies that the former suit must be pending before a
court which is competent to carry out the trial. If the former suit is
pending before an incompetent court, no legal effects can flow from it.

Illustrations:

 ‘X’ and ‘Y’ decide to enter into a contract for the sale of machine.
‘X’ is the seller and ‘Y’ is the purchaser. Y defaulted in paying the
amount of the sale to X. X first filed a suit for recovery of the
entire amount in Bangalore. Subsequent to this, X filed another
suit at Bombay High Court demanding Rs. 20,000 as outstanding
balance. In X’s suit Y took the defence that X’s suit should be
stayed since both the suits are on similar issue. However court of
Bombay held that since X’s first suit and the second suit have
 similar issues similar to the first suit, the subsequent suit is liable
to be stayed. 
 ‘P’ was an agent in Patna who agreed to sell goods in Odisha to
‘M’. ‘P’ the agent then filed a suit for balance of accounts in
Patna. ‘M’ sues the agent ‘P’ for accounts and his negligence in
Odisha; while the case was pending in Patna. In this case, Patna
court is precluded from conducting trial and can petition Odisha
Court to direct a stay of proceedings in Patna Court.

The moment the above conditions are satisfied, a court cannot proceed
with the subsequently instituted suit since the provisions contained in
Section 10 are mandatory and the court cannot exercise its discretion.
The order of stay can be made at any stage of the proceedings.

However, Section 10 takes away the power of the court to examine the
merits of the case thoroughly. If the court is satisfied with the fact that
the subsequent suit can be decided purely on legal point, it is open for
the court to decide in such a suit.

In Neeta vs. Shiv Dayal Kapoor & Others it was held the subsequent
matter can not be stayed if the conditions mentioned in Section 10 are
not fulfilled. In the apparent case, the two courts which tried the same
issues were not the courts having concurrent jurisdiction. Therefore, the
proceedings in the subsequent court were not stayed.

Test
The test of applicability for Section 10 is whether the decision in a former
given suit would operate as res judicata(decided case) in the subsequent
suit. It this happens, then the latter suit must be stayed. This can also be
inferred from S.P.A Annamalay Chetty vs. B.A Thornbill.

         Click above

Suit pending in foreign court

The explanation clause of Section 10 clearly provides that there is no
limitation on the power of an Indian court to try a subsequent instituted
suit if the previously instituted suit is pending in a foreign suit. This also
means that the cases can be carried on simultaneously in two courts.

Inherent power to stay

The word inherent has very wide meaning which includes an inseparable
part of something or an attribute or quality which is permanent and
essential. It is something which is intrinsic and attached to a person or
object. Therefore, inherent powers are the powers of the courts which are
inalienable i.e., something which can be separated or taken away from
the courts and they exercise it in order to provide complete justice to the
parties.

Even where the provisions of Section 10 do not strictly apply, a civil court
has inherent power under Section 151 to stay a suit to achieve justice.
Additionally courts can also consolidate different suits between the same
parties in which the matter of issue is substantially the same. In Bokaro
and Ramgur Ltd. vs. State of Bihar and Another(1962) the matter in issue
was regarding the ownership of a property. The court in this case used its
power and consolidated different issues having same matter.

Consolidation of suits
The objective behind Section 10 is to avoid two contradictory decisions in
the same matter by different courts. To overcome this the courts can
pass an order of consolidation of both the suits. In the case of Anurag
and Co. and Anr. vs. Additional District Judge and Others, it was
explained that consolidation of suits is ordered under Section 151 for
meeting the ends of justice as it saves the party from a multiplicity of
cases, delays and expenses. The parties are also relieved from producing
the same evidence at two different places.

Effect of contravention
Any decree passed in contravention of Section 10 is not null and
therefore cannot be disregarded completely. It is to be clearly understood
here that it is only the trial and not the institution of the subsequent suit
which is barred under this section. But this right which is given in favour
of parties can be waived by them. Hence, if the parties in a suit decides
to waive their rights and ask the court to proceed with the subsequent
suit, they cannot afterwards challenge the validity of the subsequent
proceedings.

Interim orders
Interim orders are the temporary orders which are passed for a limited
duration just before the final order. An order of stay under Section 10
does not take away the power of the court to pass interim orders.
Therefore, the courts can pass such interim orders as it thinks fit like
attachment of property, injunction etc.

Difference between Res Judicata and

Res Sub Judice
Res Judicata Res Sub Judice

Res judicata applies to a decided or Res Sub judice applies in a matter whic
adjudicated matter. pending.
It bars the trial of a suit or an issue which
has already been decided in a former suit.
Section 11 of the Civil Procedural Code,
1908 deals with res judicata.
Conditions:
1. A court of competent jurisdiction
must have given the decision in
the former instituted suit.
2. The matter in issue in the
subsequent suit must be same
which is directly or substantially in
issue in the former suit.
3. The parties should be same in both
the suits.
4. The court which gave decision in
former suit must be a court of
competent jurisdiction.
5. The parties in the former suit must
have litigated under the same title
or in other words in the same
capacity.  litigating.
Conclusion
It bars trial of a suit which is a pending
decision in a previously instituted suit.
Section 10 of the Code exclusively deal
with the principle of res sub judice.
Conditions:
1. There must be presence of two
suits one which was formerly
instituted and other which was
subsequently instituted.
2. The issues in the subsequent s
should be directly or substanti
be the same with the previous
3. The parties in both the suits sh
be same.
4. The court in which the previou
was instituted must be a court
which has competent jurisdicti
try such suit.
5. The title should also be the sam
both the suits under which the
Res sub judice as a doctrine has the main purpose of reducing the burden
of courts from abundance cases. In other way it also reduces the burden
of parties to adduce oral or written evidence twice in different courts. It
also avoids conflicting decisions and makes sure to minimise the waste of
resources of courts. The court can exercise this power and put a stay on
the subsequent suit. The people who try to misuse their right in order to
get double benefits are looked after through this principle. Anyways the
Indian judiciary is overburdened with many cases and if parties will start
instituting cases twice then one can’t even imagine the situation of the
courts in giving decision in all such cases.